“Banning” a Banned Ingredients Claim: NAD’s Application (and Expansion) of the FTC’s Green Guides

In its recent Biossance decision, NAD found fault with the advertiser’s claim that its cosmetics contain “Clean ingredients and clean formulas—we ban over 2000 ingredients that are known to be toxic to you and the environment.”

The basis of NAD’s recommendation to modify this claim serves as an important reminder to advertisers making claims about what is not found in their products.

In recommending that this “ban over 2000 ingredients” claim be modified, NAD relied—as it often does—on the FTC’s Green Guides. These Guides provide guardrails for advertisers that wish to make certain environmental claims, including the claims that a product is “free from” any given substance. Among other restrictions, the FTC notes that such “free” claims are not permissible where “the substance is not associated with the product category” to begin with. (A toilet paper cannot be “free from” shards of glass because toilet paper does not normally contain glass. Potato chips cannot be “free from” horse manure because chips do not normally contain manure.)

NAD applied this well-established rule in its Biossance decision, noting that there is “no information in the record as to which of these ingredients that are on the banned lists are typically used as cosmetic ingredients.” In other words, NAD did not question that the advertiser banned over 2000 ingredients. Nor did NAD question the toxicity of the banned ingredients. The basis of NAD’s recommendation, rather, was that many of these “banned” ingredients were not found in cosmetic products as a general matter.

NAD’s Biossance decision was the latest in a string of recent NAD cases that reiterate the FTC’s “free from” guidance. Last year, for example, NAD found fault with a “no aluminum” claim that appeared on deodorant on the grounds that deodorants, by definition, do not contain aluminum. The year prior, NAD recommended the discontinuation of “plastic free” claims made in association with chewing gum. There, the self-regulatory system found the claim to be deceptive because plastic is not normally associated with chewing gum.

Here, NAD went one step further by applying its and the FTC’s long-held “free from” guidance to a slightly different sort of claim: the statement that “we ban” certain ingredients. NAD’s application of the Guides to the “we ban” claim in Biossance is a reminder that NAD can and will invoke FTC guidance beyond the Guides’ black letter. While touting “banned” ingredients seems intuitively on par with making “free from” claims, this small expansion of FTC’s “free from” guidance is a reminder that any claims expressly or impliedly touting a substance’s absence may be subject to the Green Guides.